Van Horn Lodge, Inc. v. White

627 P.2d 641, 1981 Alas. LEXIS 475
CourtAlaska Supreme Court
DecidedMay 1, 1981
Docket4447
StatusPublished
Cited by33 cases

This text of 627 P.2d 641 (Van Horn Lodge, Inc. v. White) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Van Horn Lodge, Inc. v. White, 627 P.2d 641, 1981 Alas. LEXIS 475 (Ala. 1981).

Opinions

OPINION

BURKE, Justice.

The issue in this appeal is whether the superior court erred in ruling that a legal [642]*642malpractice action was barred by Alaska's two year statute of limitations, AS 09.10.-070.1

Van Horn Lodge, Inc., and two of its officers, Daniel Barnett and Howard Groff (hereinafter referred to collectively as Van Horn) began an action in the superior court against Hugh White and Paul Jones, Van Horn’s former attorneys. The complaint alleged professional malpractice on the part of White and Jones. The superior court concluded that Van Horn’s action was barred by AS 09.10.070, since the complaint was filed more than two years after the cause of action arose. Summary judgment was granted in favor of the defendants, White and Jones.2 This appeal followed.

I

In July, 1975, White and Jones were hired to represent Van Horn in a dispute between Van Horn and Donna and Gerald Ahearn, the purported lessees of a hotel owned by Van Horn. At that time, three separate lawsuits were already pending between Van Horn and the Ahearns. White and Jones entered their appearance in each of those actions and, on December 5, 1975, filed another complaint against the Ahearns for forcible entry and detainer.3 On December 31, 1975, the superior court ordered the four cases consolidated.4 In its order of consolidation, the court ordered Van Horn to file an amended complaint by January 23, 1976, repleading Van Horn’s various claims for relief.

Shortly after the court’s December 31 order, White and Jones advised Van Horn that they were concerned about Van Horn’s failure to pay for their services. According to White and Jones, they had already advanced more than $3,000 in litigation costs and were owed attorney’s fees in excess of $20,000. In discussions that began on January 5, 1976, White and Jones advised Van Horn that they could not afford to provide further legal services without payment. When told by Van Horn that there was not sufficient money available to make a satisfactory payment on the amount allegedly owed to them, White and Jones asked Van Horn to allow them to withdraw. On January 20, 1976, Van Horn consented to the withdrawal in writing. The withdrawal was formally approved by the superior court on February 2, 1976.5

During the period that they represented Van Horn, White and Jones were co-counsel with attorney Thomas Keever. Prior to their withdrawal, White and Jones advised Van Horn of the January 23 deadline for the filing of Van Horn’s amended complaint, as well as other deadlines, and urged Van Horn to contact Mr. Keever immediately.

On February 11, 1976, Mr. Keever moved for an extension of time for the filing of Van Horn’s amended complaint. The motion was granted, but the superior court imposed certain “sanctions” for Van Horn’s failure to meet the January 23 pleading deadline. The sanctions were announced orally on February 11,1976, and set forth in a written order entered several days later, on February 19, 1976. The “sanctions" required Van Horn to return a liquor license to the Ahearns or forego receipt of monthly rent in the amount of $3,500 per month.

On February 14, 1978, Van Horn sued White and Jones for professional malpractice. Van Horn’s complaint consisted [643]*643of two “claims for relief.”6 The first alleged that the sanctions imposed “on or about February 11, 1976,” had been proximately caused by the “negligence and non-feasance” of White and Jones, resulting in damages exceeding $30,000 “by loss of rents from approximately February 11, 1976.” The second claim for relief alleged that White and Jones “negligently delayed institution of a forcible entry and detainer action against [the Ahearns] until on or about December, 1975,” and that “Said negligence and misfeasance ... was the proximate cause of damages to plaintiffs, in a sum in excess of $35,000.00.”

White and Jones answered the complaint, denying Van Horn’s allegations of negligence and proximate cause. White and Jones affirmatively alleged that they had advised Van Horn of their desire to withdraw some weeks before January 20, 1976; that Van Horn had executed a formal consent to their withdrawal on January 20, 1976; that Van Horn was aware of the January 23 pleading deadline prior to their withdrawal; and that Thomas Keever continued to represent Van Horn. As one of several affirmative defenses, White and Jones alleged that Van .Horn’s action was barred by the two-year statute of limitations, AS 09.10.070.7

White and Jones thereafter moved for summary judgment, partly in reliance on their affirmative defense of the statute of limitations. On October 9,1978, the superi- or court granted the motion, after concluding that the action was barred by AS 09.10.-070, since it was not filed within two years after the cause of action arose. Upon entry of a final judgment in favor of White and Jones, Van Horn filed a notice of appeal.

II

Van Horn’s first contention is that the superior court erred in ruling that the action was barred by AS 09.10.070. That section requires an action sounding in tort to be commenced within two years after the cause of action accrues. Silverton v. Marler, 389 P.2d 3 (Alaska 1964). Van Horn argues that its action, although alleging negligence on the part of White and Jones, actually arose out of a contract between the parties and that, therefore, AS 09.10.0508 is the applicable statute of limitations. Under AS 09.10.050 an action upon a contract may be commenced within six years from the time the cause of action arises. Under the latter section, Van Horn’s complaint against White and Jones was timely.

We hold that the superior court was correct in ruling that AS 09.10.070 provides the applicable period of limitation in the case at bar. Van Horn’s complaint sounded in tort, rather than contract. The duty that White and Jones allegedly breached was a duty of reasonable care imposed by law. The contract only gave rise to the duty; the claim that White and Jones breached an implied term of their contract of employment, to render competent and diligent legal services, is only a claim that they failed to exercise due care. There is no evidence of an agreement to obtain a particular result or to do a particular thing. Thus, we believe the essence of Van Horn’s complaint was negligence, and the gravamen thereof lies in tort. Accordingly, the period of limitation found in AS 09.10.070, rather than AS 09.10.050, applies. Silverton v. Marler, 389 P.2d at 3-4. See Austin v. Fulton Ins. Co., 444 P.2d 536 (Alaska 1968); Pepsi Cola Bottling Co. v. Superior Burner Service Co., 427 P.2d 833 (Alaska 1967).

Ill

The next issue is whether the applicable statute of limitations, AS 09.10.070, barred Van Horn’s action in the instant case.

[644]

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Bluebook (online)
627 P.2d 641, 1981 Alas. LEXIS 475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-horn-lodge-inc-v-white-alaska-1981.